An Enemy of the People: South Africa at the UN Human Rights Council

The decline of the West and the rise of the rest, to use Fareed Zakaria’s terms, amount to an erosion of the foundation – Western dominance – on which the liberal international order was built. Unlike other post-war American presidents, Donald Trump is keen to tear down this order, but for now his short attention span and general cluelessness have limited the damage. While Trump’s intent is destructive, to many observers Trump is merely bringing forward the end of an arrangement that was already in inevitable decline.

Tied in with the declining fortunes of the liberal order and Western material supremacy is a key element of the post-war world – human rights. Four years before Trump’s inauguration, Stephen Hopgood observed that fading American power and the shift to a multipolar international system will lead us towards ‘the endtimes of human rights’.1 After Trump’s election, Hopgood claims, the outlook for global human rights went from poor to ‘catastrophic’.2 Much evidence supports this gloomy outlook. Globally, freedom has been in decline for eleven years on the trot.3 Worldwide, civil society space is shrinking and human rights defenders are increasingly under attack.4 Authoritarian powers like Russia and China are ascendant. In the US, Trump’s campaign of race-baiting and xenophobia helped him win the presidency. In Europe, right-wing nationalists are making major electoral gains and sometimes even gaining office. In Southeast Asia, there is a risk that democracy, such as it is, will disappear from the region.5 The promise of the Arab Spring has come to naught. In most of the countries that experienced these uprisings, life is now worse than before.

Yet, despite the walls closing in on liberalism, there has been one international domain where there has been movement in a liberal direction – the UN Human Rights Council. The Council, as Nikki Haley never tires of telling us, is a flawed institution. Rights-abusers like China, Saudi Arabia, Burundi and the Philippines are currently members. The Council constantly flays Israel, but says too little about worse problems elsewhere. Still, the Human Rights Council provides a platform for victims who cannot speak up at home. Council mandates often also result in credible reporting on right violations about which the perpetrators would rather not have us know about.

That the Human Rights Council has taken a more liberal course is a surprise, not only because it goes against underlying global power shifts, but also because of where the Council was heading in the years that followed its establishment in 2006. The Council replaced the Commission on Human Rights, an organisation so dysfunctional that Kofi Annan described it as a stain on the reputation of the entire UN. For the first few years, the Council was no better than the Commission. A number of resolutions attacked free expression, most notably resolutions that wanted to outlaw the ‘defamation of religions’. There were repeated examinations of Israel’s actions, but investigations into atrocities in Darfur and the Democratic Republic of the Congo (DRC) were stymied.

In 2010, a change of direction became visible. The Council responded timeously to a crisis in Cote d’Ivoire where civil war loomed after a disputed election. Libya’s membership – Yes, it was a Council member! – was suspended following Gaddafi’s crackdown on anti-regime protestors. In the same year, the five-year old Council authorised an investigation into human rights in Iran, the organisation’s first new country-mandate. New, intrusive investigations in Belarus, Syria, Eritrea and Burundi followed. In June 2011, the Council adopted the first UN resolution on sexual orientation. Civil and political rights received more affirmation. For instance, the ‘defamation of religions’ resolutions were ended and replaced with a text that sought to protect religious believers rather than their beliefs. The Council also adopted new resolutions on the right to peaceful assembly and association, on the right to peaceful protest, on civil society space, and on the internet and human rights, the latter affirming that people enjoy the same rights online as offline.

Under George W. Bush, the US did not seek membership of the Human Rights Council and later stopped engaging with it almost it entirely. Under Obama, the US became a member in mid-2009. It is widely accepted that American engagement under Obama was behind much of the Council’s turn towards greater respect for human rights.6

Given that developing countries outnumber Western states two-to-one, the key to American success was building cross-regional support for its agenda. This approach calls to mind John Ikenberry’s claim that a ‘new kind of liberal international order’ will have to be ‘more inclusive, less hierarchical, and infused with more complex forms of cooperation’.7 Ikenberry is perhaps too optimistic that the liberal order can endure without US leadership and preponderance – the Human Rights Council’s fortunes suggests that the US remains crucial – but what is not in dispute is that major developing countries would have to play an increasing role in upholding liberal values at the international level. In the age of Trump, such a role seems all the more imperative. Democracies from the developing world are the most likely candidates to take up such a burden, but will they? Scholars disagree. If any, South Africa seems highly likely to support international liberalism. The country is at least as democratic as other major developing country democracies. Respect for human rights is a foundation of South African democracy and an avowed component of its foreign policy.

South Africa’s record at the Human Rights Council, however, is a dismal one. South Africa is a backer of rights with redistributive implications but, when put before a choice, it has invariably failed to defend civil and political rights and has often supported their curtailment. During its first membership stint (2006-2010), South Africa repeatedly voted to limit speech critical of religions, religious persons and symbols. South Africa also said nothing about atrocities in Sudan, DRC and Sri Lanka and voted to shield these regimes from scrutiny. Even South Africa’s greatest triumph on the Council – its courageous leadership on the June 2011 resolution on sexual orientation – stemmed from a bumbled attempt, three months before, to suppress discussion of sexual orientation throughout the UN. Moreover, South Africa’s subsequent leadership on sexual orientation descended into paralysis, so much so that Latin American democracies took over and led the second sexual orientation resolution through the Council in 2014.8

South Africa re-joined the Council in 2014 and will serve until 2019. While the Council has moved in a more liberal direction, South Africa has not. Since 2014, South Africa has mostly abstained on, and occasionally opposed, country-specific resolutions. Do not mistake South Africa’s abstentions as some kind of principled refusal to criticise and pressure other countries – South Africa has always voted in favour of the dozens of resolutions condemning Israel. Rather, the principle at work is to not criticise and pressure non-Western countries over human rights violations.

With regard to thematic resolutions on civil and political rights, South Africa’s recent record affirms an assessment in the Washington Post ten years ago that South Africa is ‘an example of freedom while devaluing and undermining the freedom of others. It is the product of a conscience it does not display’. 9 Aligning itself with China, South Africa has tried to weaken resolutions about the right to free expression on the internet. In 2014, on a resolution in support of human rights defenders, South Africa voted for all of Russia’s hostile amendments. In 2016, Russia tabled thirty hostile amendments on another human rights defenders resolution – South Africa abstained on all. Resolutions on ‘civil society space’ express concern at the persecution of civil society organisations and remind governments to provide a safe environment for these organisations. South Africa has at various points voted for the watering down of these resolutions and, in 2016, joined China, Russia, Venezuela and three other countries to vote against the resolution. One of South Africa’s most prominent illiberal interventions came in 2014 when it spoke and introduced hostile amendments on behalf of China, Russia and a handful of other states on a resolution on the right to peaceful protest. Even though South Africa’s constitution guarantees the right to peaceful protest, South Africa questioned whether there is such a right.10South Africa also insisted that protests should not threaten national stability. Recall that in 1985, Oliver Tambo, then president of the African National Congress, famously called on ‘the black masses of our country, all 25 million of us, [to] join in one determined offensive to make all of our country ungovernable’. To spell it out: South Africa’s representatives on the Human Rights Council would effectively have sided with the apartheid regime and against Tambo.

The Obama administration worked with developing countries to beat back the Council’s initial illiberalism. So far, the US’s positions on the Council under Trump have been largely continuous with those under Obama, although the US’s pro-death penalty vote at the September 2017 session is a major exception. However, Trump’s ‘America-first’ approach and his racism and xenophobia are more likely to repel than attract would-be backers of international liberalism. Since Trump’s election, there has been much pearl-clutching over who will now shore up the liberal international order. While South Africa is not fully representative of the developing world, its case shows that liberal developing countries will not necessarily be a friend of the liberal international order and, more ominously, can even be its enemy.